V A PADMANABHAN Vs. M A NARASIMHAN

JUDGEMENT

(1.) THE impugned order, according to us, has no infirmity and the appeal deserves to be dismissed in limine. However, since learned counsel for the appellants has persuaded us to consider the appellants' 'case for injunction, in particular, on the plea of possession as an independent relief of injunction, we have heard him at length and we record our opinion in some detail.

(2.) ACCORDING to the plaintiff-appellants, the respondents executed an agreement on 12. 3. 1981 to sell the suit properly for a total consideration of Rs. 6,00,000 and received an advance of Rs. 1,50, (XX) from the plaintiffs/appellants by way of part performance of the agreement by the plaintiffs and put them in possession of a portion of the Schedule mentioned property, which was vacant, and further authorised the plaintiffs/appellants to recover vacant possession of the remaining portions occupied by third parties. It was agreed that the sale would be completed within three months after possession of the entire suit property was obtained or within six months from the date of execution of the agreement whichever was later. The plaintiffs who got possession over a portion of the suit property from the defendants-respondents also recovered possession of some more portions, but some portions are still in the occupation of the third parties. In order to evict those persons, the plaintiffs needed authority and money and accordingly they demanded, in writing, execution and registration of the sale deed from the respondents, but the respondents in their reply, without denying the execution of the agreement, raised a demand to a sum of rs. 9,00,000 instead of Rs. 4,50,000. The plaintiffs thus moved the Court alleging that the cause of action for the suit arose at Madras on 12. 3. 1981 where and when the suit agreement was executed, where the suit property is situate and on which date the plaintiffs paid a sum of Rs. 1,50,000 to the defendants under the said agreement, and on which date the defendants put the plaintiffs in possession of the vacant portion of the suit property in part performance of the suit agreement, besides other facts.

(3.) WE shall for the reason of the above shift in the contention of the learned counsel for the appellants, proceed first to consider whether as to what may be in a suit for specific performance of a contract of money in which by way of part performance possession is delivered by the defendants to the plaintiffs, a plea to maintain status quo to preserve possession of the agreement-holder and when can such a plea be allowed and then whether independent of a claim of possession in terms of Sec. 53-A of the transfer of Property Act, possession can be taken notice of as good and conclusive for determination of the question as to a prima facie case and "balance of convenience. Before we do so, we may take notice of the law on the subject. The Act relating to transfer of property (Transfer of Property Act) has defined' 'transfer of property' 'to mean an act by which a living person conveys property, in present or in future, to, one or more other living persons, or to himself, or to himself and one or more other living persons and' 'to transfer property' 'is to perform such act. The word' 'living person' 'in this section, it is explained, includes a company or association or body of individuals, whether incorporate or not. It then says in Sec. 6 thereof that the property of any kind may be transferred, except as otherwise provided by this act or by any other law for the time being in force and enlisted in this such items of property which cannot be transferred. This comprehensive enactment is in Group B and in this group lies that provision as to part performance of a contract to transfer for consideration any immovable property. It is Sec. 53-A which reads as follows: "53-A. Part performance: Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.